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The division of powers

sdmdivision — Thu, 10 May 2012 05:56:28 +0000

We talked a lot about liberty a few posts ago, now we will have the opportunity to examine one of its effects. We all know that there are three powers in the state: legislative, executive, and judiciary. These powers are one of the defining characteristics of regular states, but we rarely wonder how it is that such thing has come to be so. This post will focus on the nature of the division of powers, namely, its efficient and formal causes (its final cause will become obvious). I shall begin with the properties of the state that lead to the distinction of different powers of the state, then I will consider how these powers are divided. The first considerations regarding the division of powers is attributed to Charles-Louis de Secondat, Baron de la Brede et de Montesquieu, therefore, I will base my post on his Spirit of Laws (Book XI).

Let us begin, then, by considering the regular state. As a regular state, there is a government, which has a depositary, in charge of guaranteeing utility and sociality in civil society. The government ensures sociality by establishing the manner in which the obligations resulting from the duty towards sociality should be fulfilled. This first point requires that the government can also establish consequences when such obligations are not fulfilled. The government must also have some power to ensure utility in civil society, by administering the state and interacting with other states. It follows that, in order to follow the general will (defined by utility and sociality), the government requires (and is given) three faculties: establishing law (the manner in which sociality is fulfilled), executing the law that pertains to civil society, and managing the administrative and internation affairs of the state. These faculties are what we call powers: the legislative, judiciary, and executive; respectively.

However, the general will also includes the transition from natural freedom into political liberty. As we have covered previously, liberty requires that the individual is free to follow whatever desires he might have as long as he fulfills his duties towards civil society. The individual, then, must feel at ease to make his opinions and follow his preferences. Additionally, since the government has a depositary (whether it be a single person, a group, or civil society as a whole), human corruptibility is an added property to the substance of government. Therefore, there should be some way to guarantee that the individual will be safe from this possibility of corruption; so that the depositary of government, having all the power of the state, does not abuse it: this is provided by dividing the powers of the state. It is a matter, then, on the proper division of powers.

Let’s consider, now, what we have concluded. There are three distinct powers that are faculties of government, which have to be divided somehow to prevent the depositary of government from abusing them. If the legislative is joined with the executive, then tyranny will arise; on the other hand, if it is joined with the judiciary, then the judge will be the lawmaker as well. If the judiciary and the executive are joined, then the administrator of the affairs of the state will have the capacity of setting punishment. If the three powers are combined in one person, then it is just a matter of time before government turns irregular. It is easy to conclude that there should be no combination of powers into one entity. We will now examine the proper depositaries for each power.

Since the purpose of the legislative power is to establish laws to regulate the obligations arising from the duty towards sociality, it is only proper that civil society (or its representatives) be in charge of it. Similarly, since administration and international relations cannot be done by civil society as a whole, it is only proper that an administrative body should be in charge of it. However, the judiciary power can neither be dependent of civil society (this would give civil society too much influence over the judiciary); nor dependent solely of an appointee of the executive (this would give the executive too much influence). It follows that the legislative power should be in hands of the people (or their representative), the executive in hands of an administrative body, and the judiciary should be appointed by a compromise between the executive and the legislative. We have now found the proper division of powers, as a way to guarantee the political liberty of civil society.

Since this division of power has been concluded by using only properties of regular governments, without specifying a type of government, it should be part of every completely regular government, and foreign to every irregular government. The latter case is evident, but the former is not always observed (viz. governments are not always completely regular). Let’s consider the application of this division by monarchies and republics. Since the depositary of government is a single person in a monarchy, it is counterintuitive to think that the powers of government will be divided. However, it is known that a regular monarchy will have the king appointing delegates to represent the people, the judiciary, and his administrative body; otherwise, it would be an irregular government, should the king decided to deposit the three powers under his direct control. In a republic, since civil society is the depositary of government, it would be somewhat counterintuitive to think that we can delegate a power of the state to one administrative body, however we have seen previously that this is an individual (appointed by civil society) with particular duties. It is sensible to assert that the division of powers is a necessary property of a regular government, and that this division has civil society in charge of the legislative, the administrative body to the executive, and appointees from both powers in charge of the judiciary; the difference being that the depositaries of such powers are appointed depending on the type of government. In a monarchy, then, the king appoints magistrates, who appoint representatives of the people; and these representatives of the people, together with the magistrates, appoint judges. In a republic, civil society votes for its representatives for the legislative, they vote for a representative to be the head of the administrative body, and the head of the administrative body and they legislative appoint judges.

Articles of Freedom HAVE BEEN PUBLISHED - CONTINENTAL CONGRESS 2009 - THE NEXT STEP FOR A FREE PEOPLE

opey606 — Tue, 22 Dec 2009 00:47:22 +0000

Over a momentous 10-day period in November 2009, a group of second-miler Patriots, with the assistance and protection of Divine Providence, did convene in St. Charles, Illinois, witnessed via webcast by the American public, courageously to give of their Spirit, mind and strength against great odds, not the least of which was the inescapable shortcomings and imperfections of the human condition itself as that inevitably falls short of man’s worthy highest ideals, for the purpose of communally acquiring a fundamental comprehension of the wayward state of our nation’s federal government as that contrasts with the limiting structure mandated by America’s Constitution as so wisely advanced by the Founding Fathers.

In light of a well-established record of twenty years of repeated and consistently rejected petitions to the United States Federal Government for redress of legitimate grievances, it did evolve that it was the unanimous will of the attending Body to generate a statement of Constitutional Standing by the People on behalf of the People of America that unambiguously delineates the many violations of America’s Constitution by the Federal Government; declares the consequent injuries suffered by the People; instructs to federal and state levels on necessary remediation to effect the restoration of our servant government as a Republic which is bound unwaveringly by the Constitution for the united States of America; and suggests to the Sovereign People of the Land just and honorable, actionable recourse to rightfully demand of their servant government adherence to the Constitutional Rule of Law.

It is with profound gratitude to and esteem for these second-miler Patriots that I post on my blog site (scroll down to the Scribd embedded document) the resulting “Articles of Freedom – The Works of the Continental Congress 2009″ published today, December 21st, 2009, at:
http://cc2009.us/aof

At that website, you are invited to enter your “signature” among the growing number of Citizens making the following pledge:

“In full view of The Creator as my witness, I hereby pledge my signature, and vow to join with a goodly number of millions of Americans to hold our elected and appointed officials accountable for all of their violations, with a firm reminder that each one has sworn an Oath (or Affirmation), to Preserve, Protect and Defend the Constitution for the United States of America. In seeking to hold them accountable, I shall hold myself accountable to do the same.

We, the undersigned, renounce and condemn any and all INITIATION of violent force and will pursue all lawful and Constitutional means to fulfill our duty.

I place my name here and shall participate as an Eternal Record of the Will of the People to be Free.”

If you are so moved, after reading the Articles of Freedom, you are encouraged to share this historic document with your fellow citizens, friends and family, to finally enlighten the citizenry of what We The People may rightfully demand of our servant government, and of the truth of the legitimate rights, responsibilities, and privileges of the People as reserved to the People by the People as reflected within the American Constitution.

Your participation at this unprecedented, elevated crossroads in our nation’s history is crucial if all American Sovereign Citizens are to preserve our Land of the Free, are to preserve our Republic for which our enduring flag stands, and are to preserve the home of those brave sons and daughters, fathers and mothers, sisters and brothers, husbands and wives, who have embraced the pride of military service and chosen harm’s way. For them, for your loved ones, and for your fellow man, you are encouraged to step up to the plate here at Home, and with one voice declare and affirm that you will not relinquish the People’s sovereign prerogative of exercising our God-given Liberties and divinely immutable Rights, the greater of these as enumerated within the Constitution and Bill of Rights.

Again, if you are so moved, the cost for the webcast of the Continental Congress 2009 has still not been completely met. Your donation will be greatly appreciated.

View this document on Scribd

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Posted on November 11th, 2009

Be it Declared:

On This Day Forward, from November 11th to November 21st, 2009, the Time has arrived for a Free People, after careful, open and deliberate consideration of all Facts pertaining to the intransigence of the United States Federal Government to at all points hold faithful the Constitution for the united States of America and to give faithful redress to all petitions of grievances duly, diligently and lawfully rendered unto it over ample and reasonable time by the Sovereign Citizens of the States of the Constitutional Republic as represented by Delegates from each participating State to the Continental Congress of 2009 held in St. Charles, Illinois, to determine such course or courses of action as constituting responsible engagement of unalienable Right as conferred by the Creator upon each Sovereign individual in a Free Society and which therefore is in consonance with Reason harbored by intelligent, moral and Righteous men and women, that will effect that Resolution of such grievances as will result in the full and irrevocable safety, security, and tranquility of a nation of Sovereign individuals in the most expeditious manner. — Opey606

GIVEMELIBERTY.ORG

November 11th to November 21st, 2009 — AGENDA (pdf)

Live Stream:
http://www.givemeliberty.org/CC2009/default.htm

To Defend, NOT Amend, the Constitution for the united States:

CONVENED: CONTINENTAL CONGRESS 2009 - THE NEXT STEP FOR A FREE PEOPLE

opey606 — Wed, 11 Nov 2009 23:16:28 +0000

Be it Declared:

GIVEMELIBERTY.ORG

November 11th to November 21st, 2009 — AGENDA (pdf)

Live Stream:
http://www.givemeliberty.org/CC2009/default.htm

To Defend, NOT Amend, the Constitution for the united States:

Historic Continental Congress to convene November 8th-22nd, 2009

opey606 — Thu, 15 Oct 2009 10:26:34 +0000

UPDATE: December 21st, 2009

ARTICLES OF FREEDOM – The Works of the Continental Congress 2009 … Published!

Continental Congress 2009

By Howard Blitz

Source: freedomsphoenix.com

On September 5, 1774 fifty-five individuals from twelve of the thirteen colonies met at what is now called Independence Hall in Philadelphia. The meeting is known as the First Continental Congress. These individuals met for almost a full two months through the end of October, 1774. The Congress was headed up by Mr. Peyton Randolph of Virginia.

The purpose of the meeting was to discuss and decide what to do about the extraordinary activities of the King of England. The monarch was taxing the colonies to pay for all of the wars that had gone on in the past and that were taking place at the time. There was never any discussion of separating from England. As a matter of fact most did not want any separation at all. These individuals just wanted the king to stop his tyrannical ways and leave them alone to make a living, support their families, and to live in peace.

The individuals who met were trying to come up with ideas on how to get King George III to see their point of view and to right the wrongs that were being thrown upon the individuals living in the colonies. Attending this congress included George Washington, Sam Adams, John Adams, Patrick Henry, Richard Henry Lee, John Jay, and John Dickinson. They decided that letters to King George expressing their grievances about his very actions was how they were going to proceed. They also decided that they would meet again in May, 1775 at a Second Continental Congress to evaluate the progress, if any, that was made in their attempts to change the ways of King George.

By the time the colony representatives met in May, 1775, “the shot heard ‘round the world” had already made its day in Lexington and Concord, Massachusetts signaling the start of the American Revolution. The Second Continental Congress, chaired this time by John Hancock and where all thirteen colonies were represented, became a debate on whether or not to separate from England. The result of the Congress was the Declaration of Independence one year later and a total commitment to the separation putting everyone’s lives, fortunes, and sacred honor on the line.

Two hundred thirty five years later, a third continental congress, headed up by Mr. Bob Schulz of New York and consisting of 153 individuals and an undetermined number of supporters and observers from all 50 states and Washington, D.C. will meet on November 8, 2009 in St. Charles, Illinois for two weeks. The purpose is to come up with ideas on how best to restore the American republic to the constitutional form that was established by those that met at the first and second continental congresses.

American government officials have long ago departed from any adherence to the United States Constitution by which they are to govern. The fact that the president can now send American military personnel to any location on the planet without a declaration of war by congress, money is now printed to pay for government expenditures, and congress appropriates money for a vast number of activities that it has no authority given to it by the Constitution are but a trifling sample of how far American government officials have been allowed to depart from the precepts of the document by which they are to follow.

The assembly of this continental congress is simply a gathering of individuals, like those of 1774-1775 to discuss what can be done to right the wrongs that have been made by many of those occupying the presidency, congress, and judicial system over the last century violating their oaths of office and feathering their own nests at the expense of everyone else.

By going to the following links: continental congress 2009, the constitutional crisis, why the continental congress 2009, give me liberty, and we the people foundation, one can find out additional detailed information about the upcoming continental congress and the significance of the gathering. The individuals in attendance will be like those who attended the first two, peaceful and those that love liberty and desire nothing more than to be left alone in order to make a living to provide for themselves and their families.

Hopefully, the congress will be successful in helping the country return to its constitutional form. If not, tyranny may very well be the order of the day for America.